THE REVIEW

1.1 The New South Wales Law Reform Commission is currently conducting a review of the Adoption of Children Act 1965 (NSW). The terms of reference are set out above at page (iv). This Issues Paper explains the nature of the law and the Commission's inquiry. It also discusses some alternative legal approaches, and lists some of the issues on which we would like to receive submissions and comments.

Background

1.2 In 1992 the Commission reviewed the operation of the Adoption Information Act 1990 (NSW), and published its report: Review of the Adoption Information Act 1990.¹ The 1990 Act was the subject of intense debate and lobbying, and involved sensitive issues of information and privacy concerning many thousands of adults who had been involved with adoption. The Commission undertook a very intensive exercise of research and consultation in order to understand how the Act operated and its impact on the various people affected. The present review will complete the Commission's examination of adoption law in New South Wales. Both reviews were initiated by the then Minister for Community Services, the Honourable John Hannaford MLC, and have been funded by the Department of Community Services.

1.3 Much has changed since the mid-1960s, when the Act was drafted. There has been a great decline in the number of healthy newborn Australian children available for adoption. Consequently, there has been a continuing or increased interest in other kinds of adoption, for example, the adoption of children from overseas countries, children who are older or have specific health problems or other difficulties, former foster children, and children related to the adopters.

1.4 Considerable evidence has become available since the 1960s relating to people's experience with adoption. Community attitudes and laws have changed in relation to unmarried parenthood, the roles of men and women, ex-nuptial birth, de facto relationships, and many other features of family and community life. Attitudes and laws relating to access and information have changed markedly, and a considerable part of the review will be concerned with the implications of the new openness in adoption law and practice. Ideas relating to children's rights and interests have been modified, for example, by Australia's ratification in 1990 of the Convention on the Rights of the Child.² The continued development of national family laws since the introduction of the Family Law Act 1975 (Cth) requires a reconsideration of the scope of New South Wales adoption legislation. Changes in adoption law in most other Australian jurisdictions have greatly eroded the considerable uniformity achieved in the mid-1960s. Adoption practice has also changed. In other jurisdictions, both in Australia and overseas, adoption legislation has been reviewed and changed, and these developments should prove of great value to the Commission.

Scope of issues to be considered

1.5 Although there have been valuable comments on aspects of the legislation, and amendments made from time to time in relation to particular matters, the Adoption of Children Act 1965 (NSW) and the regulations made under it have never been thoroughly reviewed. The important changes referred to above make it appropriate that the present review should involve a thorough reconsideration of adoption law, rather than a mere tinkering with the legislation. The main purpose of this Issues Paper is to indicate some of the issues that will need to be addressed. It does not attempt to indicate what the Commission's views are; these will be formed as the review proceeds, and will be influenced by responses to this Issues Paper. Nor is it intended to limit the scope of submissions; people should feel free to make suggestions on any aspect of the law, whether or not it is expressly raised in this Paper. Indeed, we will be particularly grateful to people who draw our attention to aspects, or points of view, which we might otherwise have overlooked.

The purpose of this Issues Paper

1.6 This Issues Paper is designed to promote discussion of, and invite submissions on, the issues that the Commission has identified and the conceptual framework that the Commission has developed, in order to review the Adoption of Children Act 1965 (NSW). It outlines the approach the Commission proposes to take in conducting this review and identifies issues of concern. It does not make specific recommendations for reform, and is not intended to be a comprehensive discussion of the issues or of the scope and operation of this Act. Throughout this Paper, the Commission has indicated areas where further information is sought and has listed some questions for discussion.

THE COMMISSION'S APPROACH

The conduct of the reference to date

1.7 The early phase of the work has been of a preliminary nature: collecting materials, making contact, collecting literature, preparing mailing lists, studying reviews and reform of adoption laws in other jurisdictions, and engaging in limited consultation in order to prepare this Issues Paper. The publication of this Issues Paper represents a general request for assistance and suggestions from anyone who would like to comment on the legislation or any related aspect of adoption law or practice.

The next steps

1.8 The volume and complexity of issues to be addressed in the course of this review will require the Commission to publish one or more Discussion Papers. Such Papers will allow the Commission to focus on particular issues that arise out of the submissions and the consultation and research process. The Discussion Paper format allows the Commission to set out draft recommendations for reform and subject them to extensive community consultation prior to preparing its final Report to the Attorney General.

1.9 The Commission will be taking a number of steps to inform its inquiry in the months to come. It will hold public hearings, meet with interested organisations and individuals, and invite written and oral submissions. It expects to publish its Discussions Papers in October 1993, and to finish the writing of the Report in December 1993, with a view to publication by the end of 1993 or early in 1994.

FOOTNOTES

1. Report 69, July 1992.

2. United Nations Convention on the Rights of the Child. The Convention was adopted by the General Assembly of the United Nations in November 1989. Australia first signed and then ratified the Convention in 1990.